Post-Termination Retroactive Intermittent FMLA Requests Do Not Create Entitlement; Employer Notice Rules Enforced

I. Introduction

In Elizabeth Chitwood v. Ascension Health Alliance, the Seventh Circuit affirmed summary judgment for Ascension on claims of FMLA interference and retaliation after Ascension terminated Elizabeth Chitwood, an HR specialist, for “Leave Exhaust/Failure to Return to Work.” Chitwood had been approved for intermittent FMLA leave for migraines and later for continuous FMLA leave to care for her son. When the continuous leave ended, Ascension repeatedly directed her to return to work. She did not. The day after her termination, she attempted to retroactively report intermittent FMLA leave for absences on November 11, 12, and 15, 2021.

The key issues were whether Ascension interfered with FMLA rights by rejecting the post-termination retroactive intermittent leave reports, and whether Ascension retaliated against Chitwood for FMLA use when it terminated her after she failed to return to work.

II. Summary of the Opinion

The court held that no reasonable jury could find (1) interference, because Chitwood was terminated before she attempted to invoke intermittent leave for the relevant absences and, in any event, she failed to comply with “as soon as practicable” and employer “usual and customary” notice requirements; or (2) retaliation, because the undisputed evidence showed Ascension terminated her for failure to return to work after continuous leave expired—not because of protected FMLA activity. The court also found internal communications reflected at most an “honest suspicion” of FMLA abuse, which does not establish retaliatory intent.

III. Analysis

A. Precedents Cited

  • Nicholson v. Pulte Homes Corp.: Provided the de novo standard of review for summary judgment and the obligation to view facts and inferences in the nonmovant’s favor. The case frames the appellate posture: Chitwood needed record evidence sufficient for a reasonable jury, not speculation.
  • Kauffman v. Fed. Express Corp.: Cited for the Seventh Circuit’s recognition that § 2615(a)(2) supports an FMLA retaliation cause of action. It anchors the doctrinal basis for Chitwood’s retaliation theory.
  • Juday v. FCA US LLC: Used in multiple ways: (i) to describe the two familiar categories of FMLA claims (interference and retaliation); (ii) to emphasize retaliation’s intent requirement (“prohibited animus”); and (iii) to support the “honest suspicion” concept—an employer may act on a genuine belief that leave is being abused without thereby committing retaliation.
  • Davis v. Ill. Dep't of Hum. Servs.: Supplied the elements of an interference claim, focusing the dispute on notice and denial of benefits “to which [the employee] was entitled.”
  • Riley v. City of Kokomo and Guzman v. Brown County: These cases drove a central timing principle: when termination is decided (or occurs) before the employee requests FMLA leave for the relevant time, the employee cannot show denial of entitled benefits or retaliation based on that later request. The court treated Chitwood’s post-termination attempt to report intermittent leave as legally ineffective to create a triable claim.
  • Righi v. SMC Corp. and Lutes v. United Trailers, Inc.: Applied to enforce notice rules. The court relied on these cases for the proposition that failure to follow “applicable regulatory and workplace requirements” for notice can defeat an interference claim. They reinforced that employer call-in/reporting procedures matter, so long as they are consistent with the regulations.
  • Freelain v. Vill. of Oak Park: Provided the elements of retaliation (protected activity, adverse action, causation) and thus the roadmap for why Chitwood’s evidence failed on causation and intent.
  • Lohmeier v. Gottlieb Mem'l Hosp. and Trahanas v. Nw. Univ. (plus Malin v. Hospira, Inc., Lapham v. Walgreen Co., and Univ. of Tex. Sw. Med. Ctr. v. Nassar): Not used to decide the case’s outcome, but important: the panel flagged an unresolved intra-circuit tension on the causation standard for FMLA retaliation (“but-for” vs. “substantial or motivating factor”). The court expressly noted the issue “may be a substantial one,” implicating statutory/regulatory construction and Supreme Court precedent, but found the distinction immaterial on these facts.
  • Paterakos v. City of Chicago: Reinforced that the FMLA does not protect abuse and that an employer’s honest belief of abuse—even if mistaken—can defeat a retaliation theory. The court used it to characterize internal emails as consistent with permissible suspicion rather than unlawful animus.
  • Goelzer v. Sheboygan County and Tibbs v. Admin. Off. of the Ill. Cts.: Addressed pretext. Goelzer stands for the idea that shifting or invented justifications can support an inference of pretext, while Tibbs defines pretext as a “lie” (a phony reason), not simply imperfect internal messaging. The panel concluded Ascension’s rationale did not shift: Chitwood was terminated for failure to return to work.

B. Legal Reasoning

1. Interference: No Entitlement + Noncompliant Notice

The court’s interference analysis turned on two linked points.

  1. Post-termination retroactive reporting does not establish denial of an entitled benefit. Chitwood tried to treat her November 16 report to Sedgwick as creating a right to have November 11, 12, and 15 treated as intermittent FMLA. The court rejected this because she had already been terminated on November 15. In the court’s view, she was therefore not in a position to claim she was denied FMLA benefits “to which she was entitled” for those days, tracking the timing logic of Riley and Guzman.
  2. Even assuming she were still employed, she did not satisfy “as soon as practicable” and customary notice rules. Under 29 C.F.R. § 825.303(a), notice must be “as soon as practicable” and generally within the employer’s “usual and customary” requirements. Ascension’s policy required reporting intermittent FMLA usage to Sedgwick the same day and notifying a supervisor “as soon as practicable.” The record showed she could call the attendance line on November 15, yet did not indicate an intent to take FMLA leave and waited until the next day (after termination) to report intermittent leave for multiple days. On these facts, the court found no reasonable jury could deem the delay “practicable” or compliant with policy and regulation, consistent with Righi and Lutes.

2. Retaliation: Termination Caused by Failure to Return to Work, Not FMLA Use

The retaliation claim failed because Chitwood could not connect her protected activity (prior FMLA usage) to the adverse action (termination) through evidence of prohibited animus.

  • As to the November absences: Chitwood was terminated before she invoked FMLA for those days, defeating any inference that the termination was in response to protected conduct, consistent with Guzman.
  • As to her broader history of FMLA use: the court treated the causal chain as straightforward: continuous leave ended; Ascension repeatedly instructed her to return November 15; she did not; Ascension terminated her for failure to return as warned. Without evidence that she would have been terminated even had she returned, the record could not support retaliatory intent.
  • Internal emails and messages did not show pretext. The “end game…not on the up and up” email and Godsey’s speculation about trying to “make at least one…stick” were construed as permissible suspicion of abuse—an “honest suspicion” under Juday and Paterakos—not as proof of retaliation for legitimate leave. Likewise, discussion about rehire ineligibility and possible wording did not evidence a “lie” about the termination reason under Tibbs, because Ascension ultimately used and maintained the “Leave Exhaust/Failure to Return to Work” rationale.

C. Impact

  • Reinforces strict enforceability of call-in/notice procedures for intermittent leave. Employers in the Seventh Circuit can take comfort that clearly communicated “usual and customary” reporting rules—like same-day reporting to a third-party administrator—can be dispositive when an employee delays without a genuine practicability barrier.
  • Limits “retroactive intermittent leave” strategies after a return-to-work directive. The decision underscores that an employee cannot cure unexcused absences after the fact—especially after termination—by attempting to retroactively designate them as intermittent FMLA leave.
  • Strengthens the “failure to return after leave exhaustion” defense. Terminating an employee for not returning after FMLA leave ends is not, without more, retaliation; plaintiffs must produce evidence that the reason is pretextual and that protected activity actually drove the decision.
  • Signals future litigation on retaliation causation. By flagging the unresolved standard (but-for vs. motivating factor) and citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, the panel invites focused briefing in a future case where causation is outcome-determinative.

IV. Complex Concepts Simplified

  • Intermittent vs. continuous FMLA leave: Intermittent leave is taken in separate blocks of time (e.g., migraine days). Continuous leave is a single uninterrupted period (e.g., several weeks to care for a family member).
  • Interference vs. retaliation: Interference focuses on whether the employer denied an FMLA benefit the employee was entitled to. Retaliation focuses on whether the employer acted with a prohibited motive because the employee used or tried to use FMLA rights.
  • “As soon as practicable” notice: Notice must be given as quickly as reasonably possible under the circumstances. If the employee can comply with the employer’s usual reporting rules (like calling in the same day), waiting without a concrete obstacle can defeat the claim.
  • Pretext: A showing that the employer’s stated reason is not the real reason—essentially a cover story. Mere awkward internal discussion or alternative phrasing is not enough unless it shows the employer is lying about why it acted.
  • “Honest suspicion” of abuse: If an employer genuinely believes an employee is misusing FMLA, it may act on that belief without automatically committing retaliation, even if the belief later proves mistaken.
  • Summary judgment: The court ends the case before trial when no reasonable jury could find for the nonmoving party based on the evidence in the record.

V. Conclusion

The Seventh Circuit’s decision establishes (and strongly reinforces) a practical rule: an employee cannot resurrect FMLA protection through post-termination, retroactive intermittent leave reporting—particularly where the employee failed to comply with feasible same-day notice procedures and ignored clear return-to-work directives after continuous leave ended. The opinion also confirms that termination for failure to return to work after FMLA exhaustion is a legitimate, nonretaliatory basis absent evidence of pretext or prohibited animus, and it highlights—without resolving—the circuit’s ongoing causation-standard debate for FMLA retaliation claims.